Case No.:

AC-REV-237-1961

Court:

Court of Appeal

Issue No.:

1962

Principles

·  Civil Procedure—setting aside default decree—Civil justice Ordinance 1929, S. 69— Thirty-day period begins when notice of execution proceedings given

·  Civil Procedure—Notice of preliminary decree by default—Suits on mortgages’— Absence of notice is cause to re-open final decree

Held: (i) The time limit of thirty days under Civil Justice Ordinance 1929, S. 69, begins to run when notice is served on defendant of the execution decree.

(ii) When notice to show cause why a final decree should not be issued is
not given to defendant after a preliminary decree by default in a suit on a
mortgage, the defendant against whom a final decree then issues may apply
for re-opening under Civil Justice Ordinance 5929, S. 226.

Judgment

COURT OF APPEAL) *

MOHAMED IBRAHIM AHMED v. AGLADIOS BASILIOS

AC-REV-237-1961

Advocates: Farouk Ahmed for defendant-applicant

Ismail Musa El Beshir ... for plaintiff-respondent

M. A. Hassib, Acting C.]. March O, 1962: —This is an application for revision against the decision of the Judge of the High Court, Blue Nile, in HC-REV- dismissing summarily an application for revision against the decree of the District Judge, Kosti, in CS-9o-1960

The facts of the case shortly are:

By a mortgage deed registered on July 19, 1958, at Kosti Land Registry Office under D-226- defendant, Mohamed Ibrahim Ahmed, mortgaged his property known as plot No. 8, Block 7, Hai el Nasr, Kosti Town, in security for £S. in favour of the plaintiff.

By CS-9o- 5960, Kosti District Court, the plaintiff-respondent brought an action against defendant-applicant claiming recovery of the debt secured by mortgage by either sale or foreclosure.

The court fixed hearing of the suit for February 2!, 1960, and on non- service of defendant, the suit was adjourned for May 19, 1960, and on that date plaintiff appeared, but defendant failed to appear and the writ server reported that he gave notice to defendant of the summons, but defendant refused to sign.

The court on the report of the writ server deemed defendant duly served, proceeded with the hearing of the suit, and gave plaintiff a preliminary decree of his claim and costs.

The preliminary decree was ordered on June i8, 196o, giving defendant a month’s grace for payment of the claim and costs, but a formal preliminary decree was not made till November 30, 1960, the date on which plaintiff applied for a final decree. On that date only, the preliminary decree was put into its form. Meantime a final decree was ordered in favour of the plaintiff, but it again was not at all put into formal expression

The record does not show service of the preliminary decree on the defendant, and defendant was not given notice to show cause why a final decree should not be given to plaintiff. Again the final decree was not served on defendant, as it is not yet put into form. However, the court took steps for sale of the defendant’s property and in the course of the sale formalities the whole affair came to the knowledge of the defendant. On January 6, 1961, when he took notice of the decrees against him, the defendant applied to the court for setting aside the preliminary and final decrees on the ground that he was never summoned for hearing of the case.

The reason assigned by the defendant for reopening was made a point at issue on which the court heard evidence and decided against defendant. His application for reopening was dismissed on April 6, 1961, on the ground that defendant was deemed duly summoned.

By HC.REV-96- defendant-applicant applied to Judge of the High

Court, Blue Nile, for revision of the order of the District Judge, dated

April 6, 1961, rejecting his application for the revision was

summarily dismissed by the Honourable judge of the High Court, Blue

Nile, who did not make a note of his reasons.

By this application the defendant-applicant now attacks both the decision of the judge of the High Court and the decision of the District Judge dated April 6, 1961, refusing reopening the suit.

Before us the parties are represented and the advocate for defendant- applicant contends as follows:

(1) The finding of the court that the defendant-applicant was given notice of the date of hearing and refused to sign was based on the allegation of the writ server, and that was against the weight of evidence heard by the court (District Court) on the point, because it was contradicted by the evidence of the two witnesses brought by the defendant-applicant which showed that he was absent in Khartoum in the period from March to May 29, 1960, and is also destroyed by the evidence of the second witness of defendant-applicant which casts a great doubt on the allegation of the writ server.

(2) Even though the defendant-applicant may have failed to show sufficient cause for non-appearance according to Civil Justice Ordinance, s. 69, it is submitted that the court may invoke its jurisdiction under Civil Justice Ordinance, s. 226, to restore this suit for trial on the principles laid down in Société Pour Ia Vente Des Produits Egyptiens v. Fad! El Seed Fad!, AC-REV- (i S.L.J.R. , as the first reason for this is that the claim is a money lending transaction which is alleged to be a hard and unconscionable one, and if defendant-applicant is deprived from challenging it he will remain without remedy on the trick of his lender.

(3) The defendant-applicant in this case has shown no tendency, which may amount to dilatory conduct. The date on which the preliminary decree was ordered was the first date of hearing for the suit.

(4) The defendant-applicant was not served with the preliminary decree nor with the final decree. He was also not called to show cause why a final decree should not be issued against him.

The advocate for plaintiff-respondent in his turn stated:

(1) The allegation that defendant-applicant was not served was not  accepted by the court trying the suit as the evidence before it was sufficient; and he does not want to comment on the evidence of the second witness of the defendant-applicant.

(2) As the relation between the parties was that of mortgage transaction without interest I submit the Court of Appeal would not exercise the power conferred by Civil Justice Ordinance, s. 226.

(3) I agree the default decree was issued on the first hearing of the suit which took place on May 19, 1960, and that alone is not a sufficient reason for reopening.

(4) I admit the preliminary decree was never served on defendant- applicant and I submit there is no reason in law for serving the final decree on defendant-applicant.

These are the points in argument between the parties concerning the order of the District Judge, dated April 6, 1961, which I am going to discuss at length in furtherance of my judgment on the application but I am not going to give special consideration to the order of the Judge of the High Court as that order was made without recorded reasons by the Honourable Judge of the High Court.

Again, if the preliminary decree ordered by the District Judge on June i8, 1960, is reversed, the final decree of November 30, i96o, must of necessity fall with it.

The points contended on behalf of the defendant-applicant and argued in this revision could be summarised in two major points, which I proceed now to discuss at length.

Was the defendant-applicant entitled to an order setting aside the preliminary decree of June i8, i96o, and restoring the suit for trial under Civil Justice Ordinance, s. 69, or not?

Civil Justice Ordinance, s. 69, reads:

Where a decree is passed against a defendant who has not appeared he may apply at any time within 30 days from the date on which any process for enforcing the decree against him has been executed to the court by which the decree was passed for an order to set it aside, and if he satisfies the court that the summons was not duly served or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing the court shall make an order setting aside the decree against him upon such terms as to costs, payment into court or otherwise as it thinks fit, and shall appoint a day for the hearing of the suit.”

In order to invoke Civil Justice Ordinance, S. 69, the defendant- applicant’s advocate contends that defendant-applicant was not summoned, and that was the reason on which he applied to the court of the District Judge for setting aside the default preliminary decree and the court of the District Judge misdirected itself as to the weight of evidence heard before it en the particular point at issue.

I have read the record of evidence on the particular point at issue, and I feel that the evidence on the point at issue is not sufficient to support the fact that defendant-applicant took notice of summons. The evidence of the writ server himself was inconsistent and also shaky. He did not state when and how he did it and he admitted it was improperly done. Great doubt on the evidence of the writ server is also cast by the evidence of the second witness of the defendant-applicant. This witness (FadI Ahmed Idris) reported the conversation which took place between the defendant-applicant and the writ server and which cast a shadow of doubt on the fact of service of summons by the writ server on the defendant applicant. In these circumstances the right inference for the court of the District Judge was an inference of non-service. I therefore come to the decision that the court of the District Judge was not right in its finding against the defendant-applicant and its finding of service should be altered. It was against the weight of evidence. The court of the District Judge is a court of inferior jurisdiction.

Before leaving this question it is interesting to inquire whether the application against the decision of the District Judge could be made after lapse of more than one month which is the time limit of Civil Justice Ordinance, s. 69.

In my view, in the ordinary circumstances, the time limit of the section should be carefully noticed, but in this case the preliminary decree which gave the defendant-applicant a month’s grace for payment was never brought to the knowledge of the defendant-applicant and no execution was yet made against him. In such circumstances I think the time limit has no operation on the right of the defendant-applicant under Civil Justice Ordinance, s. 69. The time limit operates only when the default decree is served on the defendant or when an execution is made against him.

I now proceed to consider, whether in the circumstances of this case, the Court of Appeal may (even defendant-applicant has failed to show sufficient cause for non-appearance in accordance with the meaning of Civil Justice Ordinance, s. 69) invoke its inherent jurisdiction under Civil Justice Ordinance, s. 226, to enable the defendant-applicant to restore the suit for trial on the principles laid down in Société Pour Ia Vente Des Produits Egyptiens v. Fad! El Seed Fad!, AC-REV-33- ( S.L.J.R. ,

Civil Justice Ordinance, s. 226 reads as follows:

“Nothing in this ordinance shall be deemed to limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.”

The principle laid down in Société Pour La Vente Des Produits Egyptiens v. Fadi El Seed Fadi, AC-REV- (S.L.J.R. is as follows:

The court has inherent power to restore a suit for trial after a default decree was passed, even if no sufficient cause is shown within the meaning of Civil Justice Ordinance, s. 69.”

By the principle laid down in Société Pour . Ia Vente Des Produits Egyptiens V. Fad! El Seed Fadi, AC-REV- S.L.J.R. ç, it is clear that if there is sufficient cause other than that of non-appearance under Civil Justice Ordinance, s. 69, there is a ground for the court to intervene for restoration of the suit for trial in order to remove injustice from defendant-applicant.

In the present case it is proved that the court of the District Judge made irregularities, gross enough to make the trial of the suit unfair on the defendant-applicant. The preliminary decree gave defendant-applicant a grace of one month, and that was ordered on June, 8, 1960, but the order was not put into formal decree until November 30, 196o. This preliminary decree was not at all served on the defendant-applicant The period of grace was never conveyed to the defendant-applicant, and that deprived him of an opportunity for payment given to him by the law. He could not avail himself of it owing to the fault of the District Court.

It is further proved that the date of the preliminary decree (June, 8, 1960) was the first date for hearing and that defendant-applicant did not attempt to delay the hearing of the suit. He in fact did not make any dilatory tactics, and as such he is entitled to the aid of this court for restoration of his suit.

Furthermore it is proved that the defendant-applicant was not given notice to show cause why a final decree should not be issued against him. It is true the law does -not make it imperative on the court to issue such a notice but it has been the practice of Sudan courts to issue such a notice whenever a final decree in mortgage cases is sought by the plaintiff- respondent. I am therefore of opinion that omission to give such a notice’ is an irregularity in practice, sufficient to lead for consideration of Civil Justice Ordinance, S. 226.

I, therefore, and because the nature of the transaction of the parties is one in which the hand of the plaintiff is usually very heavy on the head of the defendant find that justice cannot be done without restoration of the suit for trial on the merits.

In the result there shall be an order setting aside the orders of the lower courts and restarting the suit for trial.

No order as to costs.

Salah Hassan P.J. March 20, 1962: —I concur.

* Court: M. A. Hassib, Acting C.J., Salah Hassan